By: Charles Bjork
Session Six of IALL’s 35rd annual course on international law and legal information in Oxford featured a talk by Associate Professor Jeremias Prassl of the Oxford University Law Faculty on the following topic: Humans as a Service? Regulating Work in the Sharing Economy.
Professor Prassl began by describing the phenomenon known as the “collaborative,” “sharing,” or “gig” economy. This phenomenon relies on crowdsourcing, a term coined by Jeff Howe of Wired magazine in 2006 to describe a business model in which online providers (platforms) outsource everything from project financing to the performance of specific tasks to large groups of individuals (crowds). Examples of crowdsourcing platforms disrupting established business models include Uber and Lyft (taxi services) and airbnb (hotels). Jeff Bezos, the CEO of Amazon.com, has stated that it is his ambition to use the provision of “humans as a service,” his term for crowdsourcing, to disrupt all types of conventional industries.
From the consumer’s perspective, the sharing economy offers several advantages, notably more providers of services at a lower cost, and the opportunity to incentivize better service through rating systems. From the service provider’s perspective, the sharing economy also offers concrete benefits, such as the possibility of earning extra income, greater flexibility in the scheduling of work, and the opportunity to be one’s own boss by becoming a “micro-entrepreneur.” However, as Prof. Prassl noted, the sharing economy is analogous to an iceberg. The benefits are readily apparent on the surface, but hidden dangers lurk below the waterline.
The biggest downside of the sharing economy for service providers is that there is no guarantee that steady work will be available when needed. Even when work is available, competition may drive down the price that providers can charge. Thus micro-entrepreneurs may find themselves working long hours for low, unpredictable pay. Micro-entrepreneurs also face legal uncertainties. Will they be eligible for workers’ compensation if they are injured while performing a gig? Not if they are classified as independent contractors, rather than employees. What about liability insurance for negligent acts? Most individual auto insurance policies don’t provide coverage when an Uber driver uses her vehicle to carry passengers for hire.
Consumers also face hidden downsides. Rating systems are subject to manipulation and don’t guarantee good service. In addition, platform owners, such as Uber, almost always require users to not to hold them liable for the negligence or fraudulent conduct of service providers as a condition of downloading the platform owner’s app. Few users bother to read this fine print before downloading. Consequently, a platform user who is injured or defrauded by a service provider may have no recourse other than to sue the service provider as an individual, rather than the platform owner with the deeper pockets. If the service provider isn’t covered by liability insurance, there is a real danger that he may turn out to be judgment-proof.
Platform owners insist that they should not be subject to conventional employment laws because their new technologies are transformative. Uber, for example, is actively lobbying to exempt itself from being subject to minimum wage and unemployment insurance laws. Professor Prassl contends that, from a legal perspective, “gigs,” “tasks,” and “orders” are indistinguishable from conventional employment. The technology may be novel, but the issues that it raises are not new.
The sharing economy can be seen as the continuation of longstanding trend among employers to shift more and more risks on to workers. Individuals may find themselves working almost non-stop during periods of high demand, or risk being dropped by platform owners if they fail to make themselves available, and then go for long stretches with little or no work when demand is low. Thus fluctuations in the business cycle are now born by workers rather than employers. These practices undermines the conventional social contract whereby employers make long-term commitments to employees, providing them with a steady income and benefits, in return for a stable, better trained, and more highly motivated workforce.
Moving forward, the challenge will be to bring the new employment opportunities created by the sharing economy within the legal framework of conventional employment law. Platform owners need not be required to provide the same level of legal protections and benefits to service providers that would be expected of a conventional employer, but some baseline level of protections and benefits should be required in order to create a more level playing field among conventional businesses and novel service providers.